Mediation can be used to resolve Disputes between two or more Parties. If Malcolm Taylor is appointed as Mediator in a Dispute the Parties will (a) be asked to confirm that appointment in writing (the “Appointment”) and to confirm that these Rules will apply (and that they will be bound by them) and (b) sign a formal agreement (the “Mediation Agreement”) on or before the commencement of the Mediation, which such Mediation Agreement shall incorporate these Rules. The communications between the Parties and the Mediator setting out these agreements shall be referred to as the “Appointment Communications”. For the avoidance of doubt, these Rules shall apply whether or not a formal Mediation Agreement is ever actually executed.
In these Rules, the term “Mediator” shall mean Malcolm Taylor or such other substitute mediator as may be agreed by the Parties (and shall also include any co-mediator, assistant mediator or pupil, as the case may be, provided always that the same has been agreed in advance by the Parties). The term “Parties” shall mean the parties (whether two or more) to any Dispute, all of whom will have confirmed the appointment of Malcolm Taylor in writing, as set out in paragraph 1 above (and “Party” shall refer to one of them, as appropriate) and the term “Dispute” shall mean the issue, claim, dispute or other matter referred to Mediation by the Parties.
The Mediator is and shall be impartial, independent and neutral and the Parties agree and accept that in relation to any Dispute, the Mediator is neither an agent of any of the Parties nor is acting in any way on behalf of any of the Parties and that the Mediator does not give any legal advice. The Parties also acknowledge and agree that the role of the Mediator is to facilitate a settlement, where that is possible, but that the Mediator will NOT adjudicate the Dispute. If it becomes clear to the Mediator that he has prior knowledge of the Dispute through a previous involvement with the case or as a solicitor, counsellor, consultant or in any other professional role, or if a conflict or perceived conflict of interest arises or emerges, the Mediator shall withdraw from the Mediation.
The fees, expenses and payment terms relating to the Mediation of any Dispute shall be agreed between the Mediator and the Parties in advance of the Mediation commencing and shall be set out in the Appointment Communications, but in any event the following provisions shall apply:-
The Parties shall pay the Mediation fees and expenses (as set out in paragraphs (b) to (f) below and in the Appointment Communications) in equal shares unless the Parties agree otherwise, but in any event each Party shares responsibility for the whole amount.
On receipt of instructions (and if possible initial papers and briefing notes) from the parties, the Mediator will assess the level of preparation necessary and the likely duration of the Mediation Session (as hereinafter defined) and agree with the Parties a fee (the “Fixed Fee”). The Fixed Fee will include all reading and preparation time and the fee for the Mediation Session. Unless otherwise agreed to the contrary, the Mediator will then issue an invoice for the Fixed Fee, which must be paid in full at least 7 days before the Mediation Session AND THE PARTIES EXPRESSLY AGREE THAT IF SUCH FIXED FEE HAS NOT BEEN PAID BY THE TIME SCHEDULED FOR THE COMMENCEMENT OF THE MEDIATION SESSION, THE MEDIATION WILL NOT COMMENCE. The “Mediation Session” will normally be a full or half day period and the date and time will be agreed and set out in the Appointment Communications. In the case of a half-day session, this will be a period from 0900 to 1300 hours, or 1400 to 1800, as agreed and in the case of a full day session this will be a period from 0930 to 1800 hours, in each case on the agreed date. In the event that a resolution of the Dispute has not been reached and/or recorded and the Parties and the Mediator agree to continue the Mediation beyond the fixed hours of the Mediation Session, as above, the Mediator will charge at his agreed hourly rate (set out in the Appointment Communications) for each hour or part hour of additional time spent (whether on the same or subsequent days) and the same shall be paid by the Parties in equal shares within 7 days of the later of the date of the Mediation Session or the date of the Mediator’s invoice for such additional time. All fees and expenses referred to above shall be exclusive of VAT (and VAT shall be added on to such sums if applicable and be payable by the Parties).
If the initial Mediation Session is cancelled by the Parties (or either of them) less than 7 days prior to the Mediation Session, the Mediator will be entitled to charge for his time in undertaking any preparatory work he has by then undertaken and based on his hourly rate (set out in the Appointment Communications) and the Parties will pay for the same in equal shares and within 7 days of the date of the Mediator’s invoice in respect thereof. In addition in such circumstances the Parties shall pay a cancellation fee to the Mediator, being 50% of the Fixed Fee (such sum to be payable (i) by the Parties in equal shares if the cancellation is caused by the action or failure to act, or with the agreement of, all Parties or (ii) in its entirety by the sole Party cancelling the Mediation Session where such a situation arises).
The Mediator shall be entitled to charge reasonable expenses incurred in connection with the Mediation, such expenses to be agreed by the Parties in advance and detailed in the Appointment Communications.
Where requested by the Parties, the Mediator may assist in finding a suitable venue for the Mediation (which shall be paid for directly by the Parties in equal shares and in accordance with the terms and conditions applicable thereto). Unless specifically agreed on a case by case basis the Mediator shall NOT be responsible for payment for any venue hire or costs in the first instance.
Any unpaid invoices issued by the Mediator to any of the Parties which remain outstanding for more than 28 days will attract interest (before as well as after judgement) at the rate of 8% per annum (calculated on the basis of a 365 day year) and the Party responsible for payment of such invoice shall pay the Mediator such interest from the date upon which the same is deemed to have accrued until the date of payment of the invoice in full.
The Mediator cannot be required by the Parties (or either/any of them) to act as a witness, consultant or expert in any subsequent proceedings, or to produce any documents relating to or arising from or in connection with the Mediation and/or the Dispute. The Mediator cannot serve as an arbitrator if the Dispute subsequently goes to arbitration. The Mediator can, however, act as an expert in a subsequent expert determination of the Dispute.
The Mediator does not undertake or accept any responsibility to the Parties or any of them (and shall not be responsible) for any act or omission, including acts or omissions amounting to negligence, in connection with the Mediation, except where bad faith is shown.
The Mediation process is voluntary and any Party and the Mediator may withdraw from the Mediation at any time. In such an event that Party/Mediator must inform the other Party/Parties and the Mediator in writing within two days of their decision to withdraw (and the terms of paragraph 4(c) above shall apply in such circumstances, if such withdrawal results in the cancellation of the Mediation Session as described therein).
The existence of the Mediation and the Mediation process are confidential and without prejudice to any current or future proceedings. In addition, matters and documents disclosed to the Mediator in confidence shall remain confidential unless and until the Party which has made the disclosure authorises further disclosure. All Parties and the Mediator will keep all such matters and documents confidential and not use the same for any collateral or ulterior purpose (save to the extent that such matters or documents have been disclosed already and are in the domain of the litigation relating to the Dispute), and such matters and documents whether in writing or orally, shall be held in confidence and used solely for the purpose of the Mediation (save further as provided below) and at the termination of the Mediation all such material shall be returned to the originating party or forthwith destroyed at their option. All information exchanged arising out of or in connection with the Mediation of whatsoever nature will be without prejudice, privileged and not admissible as evidence in or disclosable in any current or future proceedings or litigation of whatever nature PROVIDED ALWAYS that the terms of this paragraph 8 shall not apply:-
1. Where any person is, or seems to be, at risk of significant harm (and in such a case the Parties irrevocably agree that the Mediator has a duty to contact the relevant authorities);
2. Where information is communicated to the Mediator with the intention of furthering a criminal purpose. In such a case the Mediator is required by law to comply with The Proceeds of Crime Act 2002 (“POCA”), The Terrorism Act 2000, The Serious Organised Crime and Police Act 2005 and The Money Laundering Regulations 2003 and 2007 and any and all other regulations made under the POCA (the “Regulations”). The POCA also covers conduct overseas, which although lawful outside the UK, may be or would have been unlawful if committed in the UK. The Regulations require the Mediator to carry out proper client identification procedures (see also paragraph 10 below) and to keep information about identification up to date. Furthermore, if the Mediator becomes aware in the course of the Mediation that either party has engaged or may have engaged in any criminal conduct, he shall be obliged to report that knowledge or suspicion to the Serious Organised Crime Agency (“SOCA”) and by entering into the Mediation Agreement the Parties authorise him to make such reports to SOCA as are appropriate under the Regulations;
3. To any information that would have been admissible or disclosable in any such proceedings in any event;
4. Insofar as any such information is necessary to implement and enforce any settlement arising out of the Mediation.
Under the terms of the Data Protection Act 1998, the Parties consent to the Mediator processing their personal data for the purposes of the Mediation Agreement. The Parties understand that this includes the Mediator retaining and storing their personal data for as long as is necessary in connection with the Mediation Agreement. The Mediator may retain data for research and statistical proposes but on the understanding that, if used, any information or details about the Parties has been removed so that they cannot be personally identified.
In order to comply with the obligations as to client identification, and subject to the Proviso below, each Party must supply to the Mediator a copy of their passport or driving licence, together with an original utility or credit card bill showing their current address, which is not less than three months old (and in the case of a Party being a company, the directors of the same shall be obliged to produce such documentation) PROVIDED ALWAYS that if a Party is represented by solicitors or counsel and such professional party has conducted such client identification and confirmed the same to the Mediator, no further client identification shall be required to be undertakenby the Mediator.
The Mediator shall control the procedure at the Mediation session. The Mediator can meet and communicate with the Parties separately prior to the Mediation Session, if requested by the Parties or if the Mediator thinks it appropriate to do so. The Mediator shall decide, in consultation with the Parties, what meetings should take place and when.
Each Party to the Mediation must appear personally or be represented by a person with full authority to settle the Dispute at the Mediation Session and the Mediation Agreement will state the names of the Parties and all those present who act for and on behalf of the Parties and who have full authority to settle the Dispute. Professional advisors and/or colleagues may also be present to represent and/or advise the Parties (although the Mediator may, if he considers it appropriate, suggest that some of the meetings between the Parties be without their professional advisors from time to time). The Parties are obliged to disclose to the Mediator and to each other, in advance of the Mediation Session, the identity and role of all those intending to be present at the same.
If during the course of the Mediation Session it would be helpful for the Mediator to draw up an interim summary (on a without prejudice basis) to record interim decisions on minor matters or options/proposals discussed, he can do so. Such a document would be privileged and could not be produced in evidence to any court.
Unless otherwise agreed, each Party will send to the Mediator and to the other Parties, at least three weeks before the Mediation Session, a summary of their case and accompanying documentation. Such documentation may be disclosed to the other Party/Parties.
The Parties may also send to the Mediator any further information or documentation which they would like the Mediator to see in confidence and such information or documentation will NOT be forwarded or disclosed to the other Party/Parties (without the disclosing Party’s express consent) providing it is clearly marked confidential to the Mediator.
At the Mediation Session, the Mediator shall, unless otherwise agreed (or if the Mediator considers it inappropriate) convene an initial meeting at which the Parties are all present and may make initial presentations, which is usually followed by separate meetings between the Mediator and each Party. However, the Mediator shall be at liberty to adopt other formats for the Mediation Session if, in his absolute discretion, he considers it would be appropriate or beneficial to do so. In any event no record or transcript of the Mediation Session will be made.
The Mediation Session shall continue (subject to the terms of paragraph 4(b) above) until a settlement is reached or the Parties and/or the Mediator withdraw. If a settlement of the Dispute is attained, the Parties and/or their legal representatives shall be responsible for the drafting of the terms of any settlement agreement and/or related documents. The Mediator shall NOT be responsible for so doing. No settlement will be binding unless it is recorded in writing and signed and dated by or on behalf of all the Parties to the Dispute.
The Mediator will do his best to help the Parties and will ask the Parties to give their full commitment to the mediation process and to co-operate as fully as possible in looking for workable solutions to the Dispute.
Regulations require the Parties to be notified of their right under the Consumer Protection (Distance Selling) Regulations 2000, as amended, to withdraw their instructions on cases where the Mediator was not initially instructed face–to-face. However, the Parties may expressly confirm in the Appointment communications that the Mediator may start work before the relevant period of seven working days expires (which will then exclude their right of withdrawal without charge).
These Rules are subject to English law and the Parties and the Mediator submit to the exclusive jurisdiction of the Courts of England and Wales.
All Parties signing the Mediation Agreement are deemed to be bound by these Rules, which shall be incorporated into the Mediation Agreement by reference.